Indiana Tax Sale Notice Statute Ruled Unconstitutional

On July 16, 2012, the Indiana Court of Appeals issued an opinion in  M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. and Monroe Bank declaring the pre-sale notice provisions of the tax sale statute to be unconstitutional.  In this case Monroe Bank challenged the constitutionality of Indiana Code section 6-1.1-24-3(b), which provides that a county auditor only has to provide pre-sale notice to a bank or other entity that has a recorded mortgage on property scheduled to be sold for delinquent taxes if the mortgage holder, by certified mail, annually requests that pre-tax sale notice be sent.   The statute also provides a court order to sell the property at tax sale will not be affected even if the auditor fails to mail the notice to a party who requests it or if such notice is not delivered for any other reason.  The Court of Appeals held that this statute violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to banks or other entities who have publicly recorded mortgages.  The Court of Appeals also found that the notice received by the bank after the sale did not cure the due process concerns because the U.S. Supreme Court has stated that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and is “entitled to notice reasonably calculated to apprise him of a pending tax sale.” Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983).

For questions about the tax sale statute, contact attorney Michael DiRienzo, a member of the firm’s Tax and Employee Benefits team.

Author: Michael DiRienzo